Rock band 'The Slants' takes on Supreme Court

The band 'The Slants' is taking their trademark fight to the Supreme Court.
Despite making music for more than a decade, the Portland, Oregon-based band has been unable to get its name registered as a federal trademark.
USA TODAY NETWORK

The Slants, an Asian American dance rock band, is challenging its trademark registration denial.(Photo: The Slants)

WASHINGTON — The latest release from Simon Tam's dance rock group is called "The Band Who Must Not Be Named" — and for good reason.

Despite making music for more than a decade, the Portland, Oregon-based band has been unable to get its name registered as a federal trademark. The battle will culminate Wednesday when four Asian-Americans who call themselves "The Slants" play a 400-seat theater known as the Supreme Court.

At issue is nothing less than freedom of speech: Does a federal law that empowers the Patent and Trademark Office to turn down applications it deems disparaging violate the First Amendment? In Washington, where a president-elect who criticizes his opponents on Twitter is redefining the outer boundaries of appropriate speech, such power to police language seems almost quaint.

Tam certainly thinks so. He named his band as an act of "reappropriation" — adopting a demeaning term aimed at Asian-Americans and wearing it as a badge of pride.

"We need to allow freedom of expression, especially with those you disagree with the most," the 35-year-old musician-activist says over a bowl of gumbo in the nation's capital. "Satire, humor, wit and irony — those are the things that will truly neuter malice."

Watching in the wings is Washington's NFL football team, both celebrated and reviled as the Redskins. Its name wasn't chosen 84 years ago as a term of endearment, but team owner Daniel Snyder's effort to keep six trademark registrations cancelled by the federal agency in 2014 now hinges on The Slants' success or failure. For the time being, the Redskins' case is pending at a federal appeals court.

While Tam and his three fellow band members seek to disassociate themselves from the Redskins — a name which the rock group's website says represents "a long history of oppression" — some of their arguments are similar.

The most obvious is the subjective nature of federal trademarks: While The Slants have been shut out and the Redskins sacked, other racy names have been approved. The Redskins' court papers include 18 pages of them, ranging from Yellowman and Retardipedia to Crippled Old Biker Bastards and Boobs as Beer Holders.

Unlike many other trademarks, Tam's lawyers point out that his was chosen as a way of regaining respect for Asian-Americans. "Simon Tam is not a bigot; he is fighting bigotry with the time-honored technique of seizing the bigots’ own language," their court papers say.

Their cause has been endorsed in friend-of-the-court briefs from 20 other groups, ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce. Tam's favorite was filed by San Francisco Dykes on Bikes, a group of motorcycle-riding lesbians whose name won federal registration but whose logo did not.

"The examiner has stood by this rejection despite the fact that not one lesbian has ever raised any objection to registration of 'Dykes on Bikes' during this entire 13-year trademark registration effort," the group's brief says.

WIN SOME, LOSE SOME

While trademarks do not require federal blessing, the government's imprimatur bolsters legal protections against copycats and helps the beneficiaries in other ways. In The Slants' case, Tam lost twice at the federal agency and again in federal court before winning on appeal late in 2015.

"The First Amendment protects even hurtful speech," the United States Court of Appeals for the Federal Circuit ruled in a 9-3 vote, prompting the government to appeal.

The Supreme Court has said just that in recent years, even when it involved distasteful protests at military funerals or disgusting "animal crush" videos. But the court also allowed a local government to place a Ten Commandments monument on its property over objections, and last year it allowed Texas to ban specialty license plates featuring the Confederate flag.

In the trademark case, the government argues that its imprimatur is akin to a government subsidy. “Nothing in the First Amendment requires Congress to encourage the use of racial slurs in interstate commerce,” it says in court papers.

If the lower court ruling stands, the solicitor general's office says, "the federal government would be required to register, publish, and transmit to foreign countries marks containing crude references to women based on parts of their anatomy; the most repellent racial slurs and white-supremacist slogans; and demeaning illustrations of the prophet Mohammed and other religious figures.”

The justices have received emotional appeals from minority groups who agree with the government's position. Lawyers for five people who successfully challenged the Redskins' trademarks urge that current trademark rules be maintained "so that they can avoid further insult resulting from the registration of marks that disparage them and other Native Americans."

The Korematsu Center, named after the man who challenged the incarceration of Japanese Americans during World War II, took a similar stand. "While empowering to a young social justice rock band," it argues, "that same mark may be debilitating for those who remember life in American internment camps during World War II."

But the Slants' supporters, including conservative as well as liberal groups, outnumber their opponents. The Chamber of Commerce, represented by the late Justice Antonin Scalia's son, Eugene, says the government's argument that it speaks through its trademark registrations falls on deaf ears. "No one could seriously regard a trademark as government speech ... so the government has no legitimate interest in disassociating itself from 'disparaging' trademarks," it says.

ARTS AND ACTIVISM

While The Slants are proud of their music, it's always gone hand-in-hand with political advocacy. They seek to help other marginalized groups, ranging from gays and lesbians to the Black Lives Matter movement, through workshops and charitable activities.

"Arts and activism have always moved forward together," Tam says.

Among the group's extended-play releases are "Slanted Eyes, Slanted Hearts" and "The Yellow Album," an Asian-American version of the Beatles' White Album. "We're judged by our ethnic identities, whether we want that to happen or not," Tam says.

Despite all the media attention, the legal effort has been more of a "distraction" than a boon, guitarist Joe Jiang says. Tam has racked up about $25,000 in court-related expenses, even though his lawyers are working pro bono. To get to Washington for the oral argument, where they are staying with friends, the group relied on a crowdfunding campaign. "Our concerts aren't being flooded by law students," Tam says. "Being known for a legal case and not for our music is not necessarily beneficial."

After Wednesday's debate, they'll mix the two, combining an intimate conversation about the case with a local concert. Likely to be on the playlist is a new song Jiang wrote called "From the Heart" that includes this verse:

Sorry if you take offenseYou made up rules and played pretendWe know you fear changeIt’s something so strangeBut nothing’s gonna’ get in our way.